<B>Is the Union Knocking? | Steps Employers Can Take to Address Unionization
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Aug 24, 2006
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Published February 2006
By: Paul M. Ostroff, Lane Powell PC
Is the Union Knocking?
Steps Employers Can Take to Address Unionization
The recent split in the AFL-CIO is certain to result in increased levels of union organizing.
(See BUILDERNews, September 2005, "AFL-CIO Split – The Largest Union Pullout in Over
70 Years.”) These developments present new challenges for employers in the building
industry who may not have previously been targeted for unionization.
While employers cannot interfere with, threaten, coerce or discriminate against employees
because of an organizing campaign, employers can – and should – take affirmative steps to
stop the need for employees to organize. In addition to a variety of non-discriminatory
rules, employers may also express their views and opinions about unions and unionization in
a nonthreatening way. In this article, we will review recommended steps that every
employer can take that will reduce the likelihood that its workforce will become unionized,
and also address some issues that are unique to the building industry.
No-Solicitation, No-Distribution Rules. Employers are permitted to have rules governing
the solicitation of employees and dissemination of information by and to employees, and
may prohibit all solicitations by employees, but only during working time and not during the
employees’ nonworking time, such as when employees are on breaks. Employers also may
generally put a stop to the distribution of literature by employees both during working time
and in working areas, but not in nonwork areas, such as where the employees gather during
breaks. However, rules written so broadly as to encompass nonworking time or nonworking
areas are presumptively unlawful. A policy that allows occasional solicitation only for
charitable purposes, is permitted.
Recommendation. Adopt a no-solicitation, no-distribution rule now, before the advent of a
union organizing campaign, and enforce it evenly.
Self-Assessment of Employment Practices. Employers should conduct periodic selfassessments. The self-assessment should be performed by counsel to ensure that the
attorney-client privilege applies to the subsequent findings. It should include: • A review of
all policies and procedures, especially those dealing with hiring, discipline, discharge, work
assignment, transfers, promotions, compensation, benefits, grievances and
communications, and, of course, all policies that may implicate the National Labor Relations
Act ("NLRA”), such as no-solicitation and no-distribution rules. • Evaluation of employee
demographic data. • Interviews with human resource managers and first-line managers to
obtain information, as well as their candid assessment of good practices and potential
vulnerabilities.
Additional steps include the appointment of a diversity or Equal Employment Opportunity
officer; the narrowing of wage and fringe benefit gaps between the employer and its
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<B>Is the Union Knocking? | Steps Employers Can Take to Address Unionization
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competitors; training of managers on union avoidance; the institution of programs that
encourage employees to view the employer in a positive light; a review of internal complaint
procedures, including harassment procedures; preparation of a pocket guide for managers
concerning the employer’s mission, code of ethics, operating values, employment law basics
and guidelines for positive employee relations.
Beware of Union "Salts.” As an organizing tool (particularly in the construction industry),
unions have increasingly used "salts,” i.e., employees on the union’s payroll who apply for
jobs with a targeted employer for the purpose of organizing its workforce. The National
Labor Relations Board ("NLRB”) has held that an employer may not lawfully refuse to hire
an applicant because he is a union business agent even if he may have stated that he
intends to try to organize the employer’s workforce, and a paid union organizer who applies
for work must be treated like any other applicant.
An employer may implement lawful, nondiscriminatory measures that may help it to guard
against the potential liability and other consequences that may arise relating to salts. An
employer that implements these measures after it has knowledge of a union organizing
campaign, or does not apply these measures uniformly, may be precluded from relying
upon them as a defense to an unfair labor practice charge. Suggested policies or practices
include: • Define the qualifications and requirements of the job, and include it in advertising
materials. • Give preference in hiring to former employees or applicants who have
previously worked successfully under your supervisors. • Require applicants to disclose their
prior wages and adopt a uniform policy of not hiring applicants who received a prior wage
that was significantly higher than the wage you are offering for the position. • Require
applicants to have been actively employed in the occupation for a specified period of time
immediately prior to the application. • Maintain and enforce policies that limit or prohibit
employees from holding other employment. • Check the information provided by all
applicants on their employment applications, require applicants to acknowledge the
accuracy of all information included in the applications, and refuse to hire applicants who fail
to accurately or completely answer all questions on job applications. • Don’t ask for
information in connection with the application and hiring process unless you have a need to
know. You may not (and should not) inquire about past or current union membership, or
other associations or organizations of which an applicant is a member. • Require that
applications be filled out on site and reject incomplete or unsigned applications.
Employee Committees. Research studies concerning workplace representation and
employee participation have shown that the great majority of employees: (1) believe that
employee organizations can only be effective if management cooperates with them; (2)
prefer an organization without decision making power that management cooperated with.
Only a small minority of employees reported that they would prefer a powerful organization
that management did not cooperate with.
In view of these attitudes, it is not surprising that many employers have implemented
employee participation programs. These programs may assume various forms, but typically
include a committee in which employees and one or more management representatives
meet and address issues in the workplace. The obvious management objective is to improve
employee morale, loyalty and productivity by gaining employee involvement in decisions in
the workplace. As a side benefit, such committees may also assist in holding unions at bay.
This latter objective can be met only if the committee is operated in accordance with rulings
of the NLRB. A committee that creates the impression that disagreement was to be resolved
bilaterally, when in truth the acceptance of any idea rested solely with the employer may
violate the Act, while a committee charged with achieving quality or efficiency or that sends
recommendations to management will not.
Avoid Card Checks. An employer may unwittingly consent to recognize a union on the
basis of a card majority, without an NLRB election. If a union has signed up a majority of an
employer’s employees in an appropriate bargaining unit, and has the cards to prove it, you
may not refuse to recognize the union if you have no good faith doubt as to the union’s
representation status. Your review of the cards to confirm the union’s majority, or your
acceptance of the union’s suggestion that a neutral third party review the cards to confirm
the union’s majority, may result in the employer’s "voluntary” recognition of the union.
Recommendation. If a union requests recognition based on cards, do not look at the cards,
and immediately state that you doubt in good faith that the union represents an uncoerced
majority of your employees in an appropriate unit, and that you doubt the validity of cards
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as an accurate expression of employees’ desires. Then, promptly contact your legal counsel.
Policies Restricting E-Mail Communications. The NLRB has held that e-mail policies
prohibiting solicitation and distribution violate the NLRA when applied to union organizing
material. While employers can restrict the use of e-mail for soliciting and distributing
information, they cannot enact or enforce restrictions in ways that discriminate against
protected communications. Thus, a policy allowing use of a company’s e-mail system for
personal matters, but prohibiting its use for distributing union literature, may violate the
Act.
Recommendation. Implement a policy now, not when union organizing activity has begun.
Issues Unique to Building Industry Employers. Construction industry employers are
allowed to enter into prehire agreements (agreements entered into when a majority of the
employees have not designated the union as their bargaining representative, or an NLRB
election has not been held). Construction industry employers sometimes mistakenly believe
that a prehire agreement can be revoked at will. Under current NLRB law, once an employer
enters into a prehire agreement, it is ordinarily bound for the term of the agreement.
Prehire agreements frequently contain automatic renewal provisions (or incorporate
automatic renewal provisions from master agreements), which may bind an employer
beyond the initial term unless timely notice of termination is given. Some agreements also
contain clauses in which the employer agrees that the union represents a majority of its
employees, and waives its right to proof of majority status. Such a clause may transform
the agreement into a true collective bargaining relationship, which will bind the employer to
continue to recognize with and bargain with the union after the contract terminates.
Construction industry employers commonly make the mistake of assuming that a prehire
agreement is for a limited term or applies only to a single project because of
representations made by the union business agent. However, employer defenses based on
such oral representations have nearly always been rejected by the courts and the NLRB.
Recommendation. If you plan to enter into a project labor agreement or a prehire
agreement, it should be reviewed by experienced labor counsel before you sign it to ensure
that appropriate language limiting its application is included.
A second area of concern to construction industry employers is work assignment
("jurisdictional”) disputes. The Laborers and Carpenters may not, as in the past, be
constrained by AFL-CIO craft lines. As a consequence, if picketing, coercion, or other threats
arise as a result of efforts by the carpenters to organize current employees represented by
other unions, employers may seek protection by filing a charge with the NLRB which may
seek an injunction against unlawful picketing. Employers may also seek damage relief in a
separate action.
Paul M. Ostroff is a shareholder at Lane Powell, where he represents and advises employers
in all phases of labor and employment law. He is a member of the Oregon, California and
Supreme Court bars. He has extensive experience representing employers in connection
with union organizing campaigns and before the National Labor Relations Board. He can be
reached at ostroffp@lanepowell.com or by calling (503) 778-2122.
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